In re Estate of Wilfrida Makokha Siko (Deceased) [2022] KEHC 11512 (KLR)

In re Estate of Wilfrida Makokha Siko (Deceased) (Probate & Administration 47 of 2015) [2022] KEHC 11512 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11512 (KLR)

Republic of Kenya

In the High Court at Busia

Probate & Administration 47 of 2015

JR Karanja, J

May 18, 2022

IN THE ESTATE OF WILFRIDA MAKOKHA SIKO (DECEASED)

Between

Joseph Omondi Muheya

Petitioner

and

Fredrick Okoth Osiko

Respondent

Ruling

1. The subject grant relating to the estate of the late Wilfrida Makokha Siro (deceased) was initially issued to Joseph Omondi Muheya (petitioner) on the 20th May 2015. However, in a ruling made by the court on 19th April 2018, the grant was revoked and a fresh one issued on 7th May 2018, in favour of Fredrick Okoth Osiko (respondent). Two years later, the respondent/applicant (objector) instead of taking out summons for confirmation of the grant filed a notice of motion dated 13th May 2020 for confirmation of the grant. The motion was nonetheless not heard but withdrawn on the 9th June 2021. The ruling rendered by the court on 15th July 2020 in favour of the applicant/objector, Fredrick Okoth Osiko with orders that if he does not take necessary steps to facilitate the distribution of the estate, the grant was to be accordingly annulled after the expiry of thirty (30) days from the date of the ruling was therefore reverted to.

2. Consequently, the applicant was expected to take out necessary summons for confirmation of the grant within thirty (30) days of the court ruling and purported to do so by filing the application dated 13th August 2020, which he withdrew on the 9th June 2021 on which date the court ordered that a fresh grant do issue to the applicant in terms of the court’s ruling made on the 19th April 2018 and fresh summons for confirmation of the grant be taken out within a period of four (4) mont’s from that date failure to which the fresh grant would stand revoked forthwith.

3. Apparently, despite the issuance of the fresh grant dated 11th June 2021 the applicant failed to take out the necessary summons for confirmation of the grant thereby rendering the grant duly revoked and useless for purposes of administration of the estate by the applicant. It was such circumstances which clearly prompted the present applicant/previous administrator of the estate, Joseph Omondi Muheya, to move the court vide the notice of motion filed and dated the 14th February 2022 for orders that the original grant be reinstated and that, a certificate of confirmation of grant be issued to the applicant on the basis of his preferred mode of distribution.

4. The application was opposed by the previous applicant/objector on the basis of the averments contained in his replying affidavit dated 9th March 2022, in which he explains the circumstances under which there was delay in taking out fresh summons for confirmation of grant.

5. Both parties argued the application by way of written submissions through their respective counsels i.e. Messrs Ipapu P. Jackah & Co. for the applicant and Messrs Ashioya & Co. Advocates for the objector (respondent).

6. Having given due consideration to the application, the supporting grounds and the rival submissions, this court is of the opinion that the application is not only defective but also misconceived and incompetent. In the first place, the applicant cannot ask for reinstatement of a grant which was revoked by the court thereby stripping him of any authority to administer the estate of the deceased. The authority was subsequently given to the respondent/objector who failed to comply with the court order to confirm the grant within a specific period of time resulting in the revocation of the new or fresh grant issued to him.

7. As the position stands, there is no valid grant of letters of administration respecting the estate of the deceased for purposes of reinstatement and/or confirmation.

8. Secondly, it is discernable from the court record and all underlying factors surrounding this cause that both the applicant and the respondent have by their respective actions and omissions been on a mission to frustrate the distribution of the estate to the rightful beneficiaries of the estate who may or may not include themselves. This has to be brought to an end.

9. Accordingly, pursuant to the powers granted to the court under Rule 73 of the Probate & Administration Rules, it is hereby ordered that this matter be forthwith forwarded to the Public Trustee to undertake the distribution of the estate amongst the rightful beneficiaries.Ordered accordingly.

J.R. KARANJAHJ U D G EDATED & DELIVERED THIS 18TH DAY OF MAY 2022